R.K.Sabharwal Case

8/9/2019 R.K.Sabharwal Case

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R.K. Sabharwal and Others

Vs

State of Punjab and Others

CASE NUMBER

Writ Petition (Civil) No. 79 of 1979

EQUIVALENT CITATION

1995-LIC-1618-SC

1995-(001)-CLR-0719-SC

1995-(001)-LLN-0810-SC

1995-(001)-SLR-0791-SC

1995-(001)-Scale-0685-SC

1995-(002)-SCC-0745-SC

1995-(003)-SLJ-0227-SC

1995-(029)-ATC-0481-SC

1995-(070)-FLR-0985-SC

1995-AIR-1371-SC

CORAM

Kuldip SinghS. Mohan

M. K. Mukherjee

B. L. Hansaria

S. B. Majmudar

DATE OF JUDGMENT

10.02.1995

JUDGMENT

1. The petitioners and respondents 4, 5 and 6 are members of the Punjab Service of Engineers

(Class I) (the Service) in the Irrigation Department of the State of Punjab. The respondents are

members of the Scheduled Castes whereas the petitioners belong to the general category. The

conditions of service of the members of the Service are governed by the Rules called the Punjab

Service of Engineers Class I P. W. D.(I. B.) Rules, 1964 (the Rules). The Punjab Government by


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the instructions dated May 4, 1974 provided reservations for the Scheduled Castes and Backward

Classes in promotions to and within Class I and II services under the State Government. It was

laid down under the said instructions that 16 percent of the posts to be filled by promotion were

to be reserved for members of the Scheduled Castes and Backward Classes (14 percent for the

Scheduled Caste and 2 per cent for the Backward Classes) subject to the conditions that thepersons to be considered must possess the minimum necessary qualifications and they should have

satisfactory record of service. The instructions further provided as under:

"(i) In a lot of 100 vacancies occurring from time to time, those falling at serial numbers

mentioned below should be treated as reserved for the members of Scheduled Castes; 1, 7, 15, 22,

30, 37, 44, 51, 58, 65, 72, 80, 87, 91 and so on. Vacancies falling at serial numbers 26 and 76

should be treated as reserved for the members of Backward Classes.

(ii) The reservation prescribed shall be given effect in accordance with a roster to be

maintained in each Department. The roster will be implemented in the form of a running account

from year to year."

Rule 9 of the Rules which provides for promotion within the service reads as under:

"Promotion within service : (1) Subject to the provisions of sub-rules 2 and 3 members of the

Service shall be eligible for promotion to any of the posts in the service, namely , Executive

Engineers, Superintending Engineers and Chief Engineers :

Provided that a Member of the service in whose case the qualifications mentioned in clause (a)

of rule 6 have been waived, shall not be eligible for promotion to the post of Superintending

Engineer or above till he has acquired the necessary qualification.

Explanation: Once an officer has been appointed a member of the Service, his promotionwithin it from one rank to another shall be regarded as promotion within the same cadre.

(2) Promotions shall be made by selection on the basis of merit and suitability in all respects

and no member of the Service shall have any claim to such promotion as a matter of right or mere

seniority.

(3) A member of the Service shall not be eligible for promotion to the rank of-

(a) Executive Engineer unless he has rendered five years service as an Assistant Executive

Engineer;

Provided that an officer who has rendered six years or more service as an Assistant Executive

Engineer shall unless he is considered unsuitable for promotion, be given preference for such

promotion over an eligible Class II Officer;

(b) Superintending Engineer, unless he has rendered seven years service as an Executive


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Engineer;

(c) Chief Engineer, unless he has rendered three years service as Superintending Engineer;

Provided that , if it appears to be necessary to promote an officer in public interest, the

Government may, for reasons to be recorded in writing, either generally for a specified period orin any individual case reduce the period specified in clauses (a), (b) and (c ) to such extent as it

may deem proper."

It is stated in writ petition that the petitioners are at serial Nos. 19, 23, 26, 29, 30, 31, 34 and

38 of the seniority list of the service whereas the respondents are at serial Nos. 46, 140, and 152.

Respondent-Rattan Singh was promoted to the rank of Chief Engineer against the post reserved

for the Scheduled Castes by superseding 36 senior colleagues including the petitioners. Similarly,

respondents Surjit Singh and Om Prakash were promoted as Superintending Engineers against the

reserve vacancies by superseding 82 and 87 senior colleagues respectively. According to the

petitioners at the time of promotion of these respondents the petitioners were already working as

Superintending Engineers for several years. It is further averred in the petition that respondents 4,

5 and 6 were in fact working as Executive Engineers when the petitioners were holding the posts

of Superintending Engineers.

2. On the above facts the petitioners have challenged the reservation policy on several grounds

but Mr. Harish Salve learned counsel for the petitioners, has confined the arguments to the

following two points:

(1) The object of reservation is to provide adequate representation to the Scheduled

Castes/Tribes and Backward Classes in services and as such any mechanism provided to achieve

that end must have nexus to the object sought to be achieved. The precise argument is that for

working out the percentage of reservation the promotees/appointees belonging to the ScheduledCastes and Backward Classes whether appointed against the general category posts or against the

reserve posts are to be counted. In other words if more than 14% of the Scheduled Caste

candidates are appointed/promoted in a cadre on their own merit/seniority by competing with the

general category candidates then the purpose of reservations in the said cadre having been

achieved the Government instructions providing reservation would become inoperative.

(2) Once the posts earmarked for the Scheduled Castes/Tribes and Backward Classes on the

roster are filled the reservation is complete. Roster cannot operate any further and it should be

stopped. Any post falling vacant, in a cadre thereafter, is to be filled from the category reserve or

general due to retirement etc. of whose member the post fell vacant.

3. Adverting to the first point Mr. Harish Salve the Mr. Rajiv Dhawan, learned counsel

representing the petitioners, have contended that the total number of promotes/appointees

belonging to the reserve categories in a cadre are to be counted to work-out the prescribed

percentage of reservation. According to the learned counsel the reserve categories can take

advantage of the reservation made in their favour till their representation in the Service- including


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those appointed against general category posts- reaches the prescribed percentage. For working

out the percentage the promotees /appointees belonging to reserve categories in the Service,

whether on the reserve posts or general category posts, are to be counted. Support is sought from

the judgment of the Punjab and Haryana High Court in Joginder Singh Sethi v. Punjab

Government, ((1982) 2 SLR 307 (P&H)). In the said case 22% reservation was provided for themembers of Scheduled Castes/ Tribes and Backward Classes. In the cadre strength of 202 posts

the Scheduled Castes candidates were entitled to 42 posts. There were already 47 members of the

said category in the cadre but out of them 10 were promoted on the basis of seniority-cum-merit

against the general category posts. There being only 37 persons who had been promoted against

the reserved posts 4 more Scheduled Castes were sought to be promoted against the reserve

vacancies. The High Court quashed the promotion on the ground that the cadre was already

having more than 22% persons from the reserve categories. We are of the view that the High

Court in Joginder Singh Sethi's case fell into a patent error. The said case was subsequently

considered by a Full Bench of Punjab & Haryana High Court in Jaswant Singh v. Secretary to

Government of Punjab, Education Department( (1989) 4 SLR 257 (P&H)). The Full Bench did

not agree with the ratio in Joginder Singh Sethi's case and reversed the same.

4. When a percentage of reservation is fixed in respect of a particular cadre and the roster

indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be

filled from amongst the members of reserve categories and the candidates belonging to the general

category are not entitled to be considered for the reserve posts. On the other hand the reserve

category candidates can compete for the non-reserve posts and in the event of their appointment

to the said posts their numbers cannot be added and taken into consideration for working out the

percentage of reservation. Article 16(4) of the Constitution of India permits the State Government

to make any provision for the reservation of appointments or posts in favour of any backward

class of citizen which, in the opinion of the State is not adequately represented in the Servicesunder the State. It is, therefore, incumbent on the State Government to reach a conclusion that the

backward class/classes for which the reservation is made is not adequately represented in the State

Services. While doing so the State Government may take the total population of a particular

backward class and its representation in the State Services. When the State Government after

doing the necessary exercise makes the reservation and provides the extent of percentage of posts

to be reserved for the said backward class then the percentage has to be followed strictly. The

prescribed percentage cannot be varied or changed simply because some of the members of the

backward class have already been appointed/promoted against the general seats. As mentioned

above the roster point which is reserved for a backward class has to be filled by way of

appointment / promotion of the members of the said class. No general category candidate can be

appointed against a slot in the roster which is reserved for the backward class. The fact that

considerable number of members of a backward class have been appointed/promoted against

general seats in the State Services may be a relevant factor for the State Government to review

the question of continuing reservation for the said class but so long as the instructions / Rules

providing certain percentage of reservations for the back ward classes are operative the same have

to be followed. Despite any number of appointees / promotees belonging to the backward classes


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against the general category posts the given percentage has to be provided in addition. We,

therefore, see no force in the first contention raised by the learned counsel and reject the same.

5. We see considerable force in the second contention raised by the learned counsel for the

petitioners. The reservation provided under the impugned Government instructions are to bemaintained in each Department. The roster is implemented in the form of running account from

year to year. The purpose of "running account" is to make sure that the Scheduled

Castes/Scheduled Tribes and Backward classes get their percentage of reserved posts. The

concept of "running account" in the impugned instructions has to be so interpreted that it does not

result in excessive reservation. "16% of the posts..." are reserved for members of the Scheduled

Caste and Back ward classes. In a lot of 100 posts those falling at serial numbers 1, 7, 15, 22, 30,

37, 44, 51, 58, 65, 72, 80, 87, and 91 have been reserved and earmarked in the roster for the

Scheduled Castes. Roster points 26 and 76 are reserved for the members of Backward Classes. It

is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are

to be filled from amongst the members of the Scheduled Caste. To illustrate, first post in a cadre

must go to the Scheduled Caste and thereafter the said class is entitled to 7th, 15th, 22nd andonwards up to 91st post. When the total number of posts in a cadre are filled by the operation of

the roster then the result envisaged by the impugned instructions is achieved. In other words, in a

cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the

Backward Classes are filled the percentage of reservation provided for the reserved categories is

achieved. We see no justification to operate the roster thereafter. The "running account " is to

operate only till the quota provided under the impugned instructions is reached and not thereafter.

Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and

thereafter the roster does not survive. The percentage of reservation is the desired representation

of the Back ward Classes in the State services and is consistent with the demographic estimate

base on the proportion worked out in relation to their population. The numerical quota of posts isnot a shifting boundary but represents a figure with due application of mind. Therefore, the only

way to assure equality of opportunity to the Backward Classes and the general category is to

permit the roster to operate till the time the respective appointees / promotees occupy the posts

meant for them in the roster. The operation of the roster and the "running account" must come to

an end thereafter. The vacancies arising in the cadre, after the initial posts are filled, will pose no

difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the

same has to be filled from amongst the category to which the post belonged in the roster. For

example the Scheduled Caste persons holding the posts at Roster-points 1, 7, 15, retire then these

slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the

persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from

among the general category. By following this procedure there shall neither be shortfall nor excess

in the percentage of reservation.

6. The expressions "posts" and "vacancies" often used in the executive instructions providing

for reservations, are rather problematical. The word "post" means an appointment, job, office or

employment. A position to which a person is appointed. "Vacancy" means an unoccupied post or


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office. The plain meaning of the two expressions make it clear that there must be a 'post' in

existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number

of posts comprising the cadre. Right to be considered for appointment can only be claimed in

respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out

in relation to the number of posts which form the cadre-strength. The concept of 'vacancy' has norelevance in operating the percentage of reservation.

7. When all the roster-points in a cadre are filled the required percentage of

reservation is achieved. Once the total cadre has full representation of the Scheduled

Castes/ Tribes and Backward classes in accordance with the reservation policy then the

vacancies arising thereafter in the cadre are to be filled from amongst the category of

persons to whom the respective vacancies belong. Jeevan Reddy, J. speaking for the

majority in Indra Sawhney v. Union of India [1992 Supp (3) SCC 217: 1992 SCC (L&S)

Supp 1 : (1992) 22 ATC 385 : AIR 1993 SC 477] observed as under (SCC p.737, para

814) :-"Take a unit / service / cadre comprising 1000 posts. The reservation in favour of Scheduled

Tribes, Scheduled Castes and Other Backward Classes is 50% which means that out of the 1000

posts 500 must be held by the members of these classes i.e. 270 by Other Backward Classes, 150

by Scheduled Castes and 80 by Scheduled Tribes, At a given point of time, let us say the number

of members of OBCs in the unit/service/category is only 50, a shortfall of 220. Similarly the

number of members of Scheduled Castes and Scheduled Tribes is only 20 and 5 respectively,

shortfall of 130 and 75. If the entire service/cadre is taken as a unit and the backlog is sought to

be made up, than the open competition channel has to be choked altogether for a number of years

until the number of members of all backward classes reaches 500 i.e.., till the quota meant for

each of them is filled up. This may take quite a number of years because the number of vacanciesarising each year are not many. Meanwhile, the members of open competition category would

become age barred and ineligible. Equality of opportunity in their case would become a mere

mirage. It must be remembered that the equality of opportunity guaranteed by clause (1) is to

each individual citizen of the country while clause (4) contemplates special provision being made

in favour of socially disadvantaged classes. Both must be balanced against each other. Neither

should be allowed to eclipse the other. For the above reason, we hold that for the purpose of

applying the rule of 50% a year should be taken as the unit and not the entire strength of the

cadre, service or the unit as the case may be".

8. The quoted observations clearly illustrate that the rule of 50% a year as a unit and

not the entire strength of the cadre has been adopted to protect the rights of the generalcategory under Clause (1) of Article 16 of the Constitution of India. These observations

in Indra Sawhney's case [1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1 : (1992) 22

ATC 385 : AIR 1993 SC 477] are only in relation to posts which are filled initially in a

cadre. The operation of a roster, for filling the cadre-strength, by itself ensures that the


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reservation remains within the 50% limit. Indra Sawhney's case is not the authority for

the point that the roster survives after the cadre-strength is full and the percentage of

reservation is achieved.

9. A Division Bench of the Allahabad High Court in J.C. Malik v. Union of India and others,[(1978) 1 SLR 844(All)] interpreted Railway Board's circular dated 20.04.1970 providing 15%

reservation for the Scheduled Castes. The High Court held that the percentage of reservation is in

respect of the appointment to the posts in a cadre. On the basis of the material placed before the

High Court it reached the conclusion that if the reservation is permitted in the vacancies after all

the posts in a cadre are filled then serious consequences would ensue and the general category is

likely to suffer considerably. We see no infirmity in the view taken by the High Court.

10. We may examine the likely result if the roster is permitted to operate in respect of the

vacancies arising after the total posts in a cadre are filled. In a 100 point roster, 14 posts at

various roster-points are filled from amongst the Scheduled Castes/ Scheduled Tribes candidates,

2 posts are filled from amongst the Backward Classes and the remaining 84 posts are filled fromamongst the general category. Suppose all the posts in a cadre consisting of 100 posts are filled in

accordance with the roster by 31.12.1994. Thereafter in the year 1995, 25 general category

persons (out of the 84) retire. Again in the year 1996, 25 more persons belonging to the general

category retire. The position which would emerge would be that the Scheduled Castes and Back

ward Classes would claim 16% share out of the 50 vacancies. If 8 vacancies are given to them

then in the cadre of 100 posts the reserve categories would be holding 24 posts there by

increasing the reservation from 16% to 24% . On the contrary if the roster is permitted to operate

till the total posts in a cadre are to be filled by the same category of persons whose retirement etc.

caused the vacancies then the balance between the reserve category and the general category shall

always be maintained. We make it clear that in the event of non-availability of a reserve candidate

at the roster-point it would be open to the State Government to carry forward the point in a just

and fair manner.

11. We, therefore, find considerable force in the second point raised by the learned counsel for

the petitioners. We, however, direct that the interpretation given by us to the working of the

roster and our findings on this point shall be operative prospectively.

12. The writ petition is, therefore, disposed of in the above terms. No costs.

R.K.Sabharwal Case

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